UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 14, No. 2WINTER 1991
NOTE
Where the Reason Stops: Babcock v. State Establishes an Unjustified Immunity for Foster-Care Placement
Christine A. McCabe
America's massive foster-care system has become so overburdened that it is threatening the welfare of thousands of children that it is supposed to protect. The system is in such disarray that many experts now say that in too many cases state custody is as harmful to the children as are the abusive homes from which they are taken.(fn1)
I. Introduction
In the midst of the problems facing the nation's child protection services, the Washington Supreme Court has lowered the protection for children in foster-care by granting absolute immunity from negligence liability to the caseworkers who recommend foster-care placement.(fn2) In Babcock v. State, the court refused to distinguish the role Department of Social and Health Services (DSHS) caseworkers performed during the initiation of a dependency proceeding from the role they perform during a foster-care placement proceeding.(fn3) Instead, the court granted blanket protection to all of the caseworker's actions- from initiating proceedings to investigating placement-under the aegis of judicial immunity.(fn4)
This Note will argue that the Babcock court's application of this immunity fails to serve the traditional goals of judicial immunity and undermines the factors that should protect dependent children. This argument will develop by first considering the development of judicial immunity and the significance of the concept of functional comparability. The Note will then begin the discussion of the Babcock case with an explanation of the nature of a dependency proceeding and the duties performed by a caseworker during initiation of a dependency proceeding and during placement in foster-care. The Note will then consider the caseworker's actions in the Babcock case and that court's application of judicial immunity. It will show that the extension of judicial immunity to investigative and ministerial duties fails to fulfill the policies behind the grant of immunity.
The Note will then show that the application of ordinary negligence principles would serve to protect the legitimate concerns raised by the court while providing protection to children who may be placed at risk by DSHS. The Note will conclude that the court should balance the need to protect caseworkers' decision-making ability with the need to protect the children in the state's care. The result of this balancing would allow the limited application of immunity to the initiation of a dependency proceeding and the application of traditional negligence analysis to foster-care placement.
II. Judicial Immunity
A. The Development of Judicial Immunity
The concept of judicial immunity from civil liability is deeply entrenched.(fn5) It was first developed to protect judges from liability in civil actions for any judicial action taken within their jurisdiction.(fn6) Courts used the doctrine to protect judicial decision-making because of the recognized need for judges to exercise discretion within their role.(fn7) Judges must be able to make decisions without the threat of a civil suit.(fn8) Additionally, judicial economy disfavors re-litigating a suit through an action against the judge.(fn9) Because of these concerns, judges are accorded absolute immunity from civil suit for actions taken within their official capacity.(fn10)
While quite broad, immunity is not unlimited in scope. It covers acts that are "judicial" and within the general scope of the court's jurisdiction, even if the acts are done in bad faith or with a corrupt or malicious motive.(fn11) However, a judge may be liable for conduct not constituting a judicial act.(fn12) For example, judges may be liable for acts that are ministerial in nature rather than judicial.(fn13) Examples of ministerial acts include chairing meetings outside of the courtroom,(fn14) forcibly removing a person from the courtroom and physically assaulting him,(fn15) and participating in employment decisions.(fn16) Ultimately, the issue of whether a judge's actions require sufficient discretion to warrant a grant of judicial immunity is one of degree.(fn17)
B. Functional Comparability
Based on the functional comparability of their roles to that of a judge, other participants in judicial proceedings have also been granted absolute immunity. Functional comparability, although not clearly defined in the cases, involves a comparison of the role performed and the judicial interests protected by immunity.(fn18) The U.S. Supreme Court first articulated the functional comparability approach in Imbler v. Pachtman, in which the Court pronounced that "[i]t is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as 'quasi-judicial' officers and their immunities being termed 'quasi-judicial' as well."(fn19)
In Imbler, a criminal defendant brought a civil rights action against the state prosecutor for damages resulting from an alleged unlawful prosecution. The Imbler Court held that a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal case was absolutely immune from civil liability.(fn20) The Court stated that absolute immunity was appropriate for conduct "intimately associated with the judicial phase of the criminal process."(fn21) The Imbler Court based the extension of judicial immunity to other participants in the judicial process, or "quasi-judicial" immunity, on the same principles that underlie the traditional grant of immunity for judges.(fn22) These principles "include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust."(fn23)
The Imbler Court specifically limited its holding so that the prosecutor was granted absolute immunity only for his acts in initiating and prosecuting a criminal action.(fn24) By so limiting its holding, the Imbler Court implied that the prosecution of an action may include activities outside the courtroom for which a prosecutor might be immune. However, the Court also recognized that "[a]t some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court."(fn25) For acts which may be ministerial in nature, and consequently not subject to judicial immunity, the Court refused to consider whether absolute immunity should be applied.(fn26)
Subsequently, the Court has clarified the application of functional comparability. In Butz v. Economou,(fn27) a futures merchant brought an action against the Department of Agriculture and others, seeking damages on the ground that the defendant had wrongfully initiated administrative proceedings against the merchant. In reaching its decision, the Court developed a two-part test for functional comparability.(fn28) First, the Court compared the officials' powers and duties to those performed by officials already protected by judicial immunity.(fn29) Second, if the duties were analogous to duties already subject to immunity, the Court would then determine whether the existence of institutional safeguards were sufficient to minimize the risks of bias.(fn30)
In order to determine whether the role of a given official is functionally comparable to a role traditionally granted judicial immunity, the Butz Court looked to whether the roles being compared performed the same duties and sought the same goals.(fn31) Thus, the concept of functional comparability focuses upon the character of the conduct for which the immunity is claimed.(fn32) That conduct must be such an integral part of the judicial process that the integrity of the process itself requires a grant of judicial immunity.(fn33)
In Butz, the Court granted absolute immunity to an administrative hearing officer's performance of functions which were substantially similar to those for which judges traditionally received immunity.(fn34) The hearing officer, like a judge, ruled on the evidence presented, regulated the course of the hearing, and made decisions or recommendations.(fn35) The Court found that "[m]ore importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him . . . .(fn36) The Court additionally noted that agency hearings, like other court proceedings, are subject to the contention that malice affected the judgment.(fn37) The Court then concluded that the hearing examiner, like a judge, needed protection from the fear of liability in order to exercise independent judgment on the evidence before him.(fn38) Therefore, a grant of judicial immunity protected the hearing examiner's ability to make decisions on the merits, the same function for which a judge is protected.(fn39)
Furthermore, the Court also granted immunity to the agency attorney for actions analogous to those of a prosecutor.(fn40) The agency attorney, like a prosecutor, had to decide whether to initiate an action.(fn41) Also like a prosecutor, the agency attorney needed to make that...
